MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            10 November 1998
	DOCKET NUMBER:   AC98-08467

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Irene E. Wheelwright 		Member	
	Ms Margaret K. Patterson. 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that her nonjudicial punishment (NJP) under Article 15, UCMJ, be expunged from her records, that the reason for her separation be changed, and that her reentry (RE) code be changed to a code which would allow her to reenlist.

APPLICANT STATES:  That a new officer misconstrued her actions while in the field.  She had not done anything improper.  However, the officer decided that his honor was at stake and fabricated a story of what happened between them.  She was then told she would be given an NJP and sought counsel.  Legal counsel advised her to ask for a closed hearing, which she decided against, and accepted the NJP without submitting any matters in her own behalf, at the advice of a warrant officer for whom she worked.  Her command then used the NJP to base a bar to reenlistment against her, resulting in her unjust discharge.

EVIDENCE OF RECORD:  The applicant's military records show:

She enlisted in the Regular Army on 13 May 1981, was awarded the military occupational specialties of motor transport operator and medical laboratory specialist, and was promoted to pay grade E-5.

On 15 May 1985 the applicant’s commander notified her of his intent to bar her from reenlistment.  The basis for that recommendation was the applicant’s 28 February 1985 NJP, her continual misconduct, insubordination and poor duty performance, and her eight counseling statements for dereliction of duty, defiance of authority, failure to repair, losing her ID card, disrespect to an NCO, disrespect to an officer, failure to obey an order, and general poor performance.

On 9 January 1986 the applicant requested immediate discharge due to her perceived inability to overcome her bar to reenlistment.

Her request was approved and she was honorably discharged on 13 February 1986.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.  Examples of rationale for reenlistment disqualification are, but are not limited to, AWOL, indebtedness, nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant has not submitted any evidence which substantiates her allegations.

2.  Absent any evidence of impropriety, the Board will not recommend removing the applicant’s NJP or changing the reason for her discharge.  As such, there is no basis for changing her RE code.

3.  The Board notes that the applicant herself requested to be discharged and waited over 12 years to file an application to change her records.

4.  In view of the foregoing, there is no basis for granting the applicant's request. 

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                                   GRANT          

                                   GRANT FORMAL HEARING

  CMF    IEW    MKP   DENY APPLICATION

                                                      Edmund P. Mercanti

Loren G. Harrell
Director